2023 PLP 145 (MLD)

CH. MUHAMMAD IQBAL, J.

Through this civil revision, the petitioners have challenged the legality of judgment and decree dated 19.10.2017 passed by the learned Civil Judge, Bhakkar who dismissed the suit for specific performance of agreement to sell filed by the petitioners and judgment and decree dated 21.01.2022 passed by the learned Additional District Judge, Bhakkar who dismissed the appeal of the petitioners.

2. Brief facts of the case are that the petitioners/plaintiffs filed suit for specific performance on the basis of oral agreement to sell dated 24.10.2010 against the respondents/defendants contending therein that they purchased the suit land measuring 39-Kanals 19-Marlas situated in Chak No.42/TDA, Tehsil and District Bhakkar from the respondents against consideration of Rs.12,00,000/-, out of which, Rs.6,00,000/- was paid through cheque on 24.10.2010 in the presence of witnesses in the house of the respondents at Karachi and it was settled between parties that after incorporation of inheritance mutation respondents would execute sale deed after receiving remaining consideration. Thereafter, the respondents/defendants refused to perform their part of the agreement upon which the petitioners filed suit. Respondents filed contesting written statement and denied the execution of oral agreement to sell stating that the amount of Rs.6,00,000/- was received through cheque on account of lease amount, as the petitioners were in possession of the suit land and are not paying the lease amount for the last 10/12 years. As per divergent pleadings of the parties, the learned trial court framed issues, recorded evidence and vide judgment and decree dated 19.10.2017 dismissed the suit of the petitioners. Petitioner preferred appeal which was also dismissed by the learned appellate court on 21.01.2022. Hence, this civil revision.

3. I have heard the arguments advanced by the learned counsel for the petitioners at full length and gone through the record with his able assistance.

4. The core controversy involves in this case revolves upon (sue Nos.1 and 2 which are reproduced as under:- "

1. Whether the plaintiffs have entered into agreement to sell dated 24.10.2010 with the defendants? OPP

2. Whether the plaintiffs have paid Rs.6,00.000/- to the defendants in consideration of the said agreement? OPP" To prove the above issues, Naveed Akbar/plaintiff No.2 appeared as PW-1 who stated that they purchased land measuring 39-Kanals 19-Marlas from the defendants against consideration of Rs.12,00,000/- and paid Rs.6,00,000/- through cheque. In cross-examination he has deposed it is correct that the defendants had been living in Karachi for the last 20/30 years and they are cultivating their land on lease for the last 5/6 years. He himself stated that initially some tenants were cultivating the land. It is incorrect that any Punchayat was convened for resolving the dispute between the parties. It is correct that the respondents/defendants living in Karachi permanently. Muhammad Tasawar appeared as PW-2 who stated that in his presence oral bargain was struck off between the parties on 24.10.2010 and in his presence a cheque of Rs.6,00,000/- was given to the defendants. In cross-examination he deposed that:- Sultan Ahmad appeared as PW-3 who in cross-examination deposed that:-

5. Admittedly, petitioners and respondents have closed blood relation (cousins). Petitioners as lessees are cultivating the land owned by the responder's whereas defendants are living in Karachi. Petitioner/ plaintiffs claimed that they purchased the suit land on the basis of oral agreement to sell but petitioner/plaintiff No.2 Naveed Akbar, who allegedly issued cheque, did not produce the cheque and bank statement in his statement rather it was produced in the statement of the learned counsel for the petitioners/plaintiffs. It is settled law that the documents relied upon or on the basis of which the case has been filed should be produced in the evidence by the party itself and an opportunity should be given to the other party to cross-examine the same, as such, the document produced by petitioners' counsel cannot be relied upon as valid evidence and such documents could not be taken into consideration. Reliance is placed on the cases titled as Mst. Hameeda Begum and others v. Mst. Irshad Begum and others (2007 SCMR 996) and Mst. Akhtar Sultana v. Major Retd. Muzaffar Khan Malik through his legal heirs and others (PLD 2021 SC 715).

6. Whereas as regard the stance of the respondents/defendants that they received Rs.6,00,000/- qua the lease amount is concerned, suffice it to say that admittedly, petitioners are cultivating the land of the respondents/defendants on lease. PW-1 states that no Punchayat was convened whereas PW-2 in his cross-examination admitted that Punchayat was convened for resolving the controversy between the parties. In the plaint as well as while appearing as PW-1 he stated that bargain was completed against consideration of Rs.12,00,000/- whereas PW-3 in his cross-examination stated that defendants demanded Rs.16,00,000/- but bargain was finalized for Rs.12,00,000/-, as such, there are major contradictions among the statements of PWs. Besides above the petitioner has neither proved any offer nor acceptance whereof through any solid and concrete evidence.

7. Petitioners filed suit for specific performance on the basis of oral agreement to sell. There is no cavil that the oral agreement to sell is permissible under the law but if its existence and validity is questioned, then it should be proved through cogent, corroborative and confidence inspiring evidence whereas in this case the petitioners have failed to prove the execution of oral agreement to sell as well as failed to mention the whereabouts i.e. time in the plaint as well as in his statement while appearing as PWs but these facts are missing whereas furnishing of such detail is mandatory and non-mentioning of such detail is fatal as settled by the Hon'ble Supreme Court of Pakistan in its latest judgment titled as Moiz Abbas v. Mrs. Latifa and others (2019 SCMR 74) as under:- "

8. We find that no date, time, place or names of the witnesses of the alleged oral agreement have been mentioned in the reply to the legal notice, the written statement, or the suit filed by the respondent. The learned counsel attempted to argue that the said gaps had been filled by the witnesses of the Respondents in their affidavits in evidence...... These requirements are sine qua non to prove an oral agreement to sell which have been settled by this Court in numerous judgments time and again. These clearly missing in this case." Further an un-written agreement can only be proved through extraordinary corroborative convincing, concrete and unimpeachable character of evidence but deposition of PWs is deficient of above traits and is not confidence inspiring which lends nil support to the petitioners' case. Reliance is placed on the case titled as Muhammad Nawaz through L.Rs. v. Haji Muhammad Baran Khan through L.Rs. and others (2013 SCMR 1300), the relevant portion is as under:- "10......In this view of the matter we are of the view that although the oral agreement is permissible under the law, yet, it must be proved through a credible and unimpeachable character of evidence and both the aforesaid qualities are not available in the evidence adduced by the appellant/plaintiff in the instant case." Reliance can also be placed on the cases titled as Muhammad Riaz and others v. Mst. Badshah Begum and others (2021 SCMR 695), Saddaruddin (since deceased) through LRs. v. Sultan Khan (since deceased) through LRs and others (2021 SCMR 642) and Muhammad Shafiq Ullah and others v. Allah Bakhsh (Deceased) through LRs and others (2021 SCMR 765).

8. Even otherwise, under section 22 of the Specific Relief Act, the grant of decree in suit for specific performance comes within the exclusive discretionary power of the court which can refuse to grant the relief on the principle of equity even if the suitor has proved the case, as settled by the Hon'ble Supreme Court of Pakistan in its judgment titled as Sheikh Akhtar Aziz v. Mst. Shabnam Begum and others (2019 SCMR 524) wherein it is held as under:- "

16. Finally, there is no cavil with the proposition that relief of specific performance is discretionary in nature and despite proof of an agreement to sell, exercise of discretion can be withheld if the Court considers that grant of such relief would be unfair and inequitable." And similar principle has been reiterated in the case titled as Muhammad Miskeen v. District Judge Attock and others (2020 SCMR 406). As such, the learned courts below rightly passed the impugned judgments and decrees and no illegality has been committed.

9. Learned counsel for the petitioners has not been able to point out any illegality or material irregularity, misreading and non-reading of evidence in the impugned judgments and decrees passed by the learned Courts below and has also not identified any jurisdictional defect. The concurrent findings of fact are against the petitioners which do not call for any interference by this Court in exercise of its revisional jurisdiction in absence of any illegality or any other error of jurisdiction. Reliance is placed on the case titled as Mst. Zaitoon Begum v. Nazar Hussain and another (2014 SCMR 1469).

10. In view of above, this civil revision is dismissed in limine being devoid of any merit with no order as to cost. ZH/A-51/L Revision dismissed.